The President Is Getting Away With Blatant Crimes. That’s Normal.

One month before winning the presidency, Donald Trump warned his supporters that this would be no ordinary election. There was more at stake on November 8 than petty partisan concerns — because his rival’s victory would pose a threat to “the very foundations of our constitutional system.”

“What makes us exceptional is that we are a nation of laws, and that we are all equal under those laws,” the Republican nominee explained. “Hillary’s corruption shreds that foundational principle.”

On Tuesday, Michael Cohen told a federal court that he had committed multiple campaign finance violations at Donald Trump’s behest. Such testimony would be more than enough to secure a felony indictment against Trump — if all Americans were actually equal before the law.

The conventional wisdom among legal scholars is that we aren’t. Rather, the expert consensus holds that president of the United States is immune from criminal indictment for as long as he (or, hypothetically, she) remains in office. For this reason, it is safe to conclude that Trump’s political power is the only thing shielding him from criminal prosecution for his hush payments to Stormy Daniels and Karen McDougal.

This is the primary significance of Cohen’s plea bargain. The substance of Trump’s apparent crime is hardly more shocking or outrageous than his typical morning tweetstorm. In post–Citizens United America, “campaign finance regulations” are something close to a contradiction in terms. When billionaires and corporations can pour unlimited, anonymous money into partisan political messaging and organization (so long as they don’t advertise their coordination with political candidates), it makes little difference whether donors honor the remaining limits on direct contributions. The public has an interest in limiting concentrated capital’s influence on elections; it has little interest in ensuring that concentrated capital follows a set of arbitrary rules whilst exercising nigh-unlimited (at least, in legal terms) influence over elections. Separately, the fact that Cohen’s plea deal substantiates the allegation that Trump committed adultery with multiple porn stars tells the “moral majority” nothing that it did not already know.

But if Cohen’s testimony did little to illuminate the nature of Trump’s malfeasance, it did throw the congressional GOP’s complicity in that malfeasance into sharp relief. The president might be immune from criminal indictment, but he is not supposed to be immune from legal culpability of any kind. Rather, Congress is supposed to police the Executive branch’s alleged crimes and misdemeanors. It is now clear that there is probable cause to believe that the president has committed a felony. If we are “a nation of laws,” then Congress must now mount an investigation into Trump’s alleged campaign finance violations — and, if evidence substantiates that allegation, impeach the president so that he can then be held accountable for his crime in a federal court, just as any other American would be.

But Congress (or, more precisely, the GOP majority that controls it) has no intention of doing that. As John Cornyn explained to the Associated Press:

Moments after Donald Trump’s former personal attorney implicated the president of the United States in a felony, Sen. John Cornyn declared “People who do bad things, who break the law need to be held accountable.”

Cornyn, the No. 2 Republican in the Senate, quickly made clear his statement wasn’t aimed at Trump.

This raises the question: Why don’t congressional Republican feel compelled to uphold the principle of equality before the law — a principle that their own standard-bearer described as “foundational” to our “constitutional system”?

I’d suggest two distinct, but related, answers to this query. The first (and most important, and obvious) is that partisan polarization has left Republicans with a strong political incentive to delegitimize and discredit scandals that implicate their party’s president (as opposed to validating and exacerbating them). Put simply, Donald Trump is an immensely popular president — with self-identified Republicans; and in an era when midterm elections are won and lost primarily on disparities in partisan turnout, it is risky for GOP incumbents to do anything that might alienate self-identified Republicans.

The second answer is that the norm against letting powerful Americans escape culpability for crimes — solely because they are powerful — has been dead for several decades now. In fact, at this point, holding Trump accountable for his crimes would actually constitute a violation of our nation’s political norms.

After all, the Trump’s administration’s “Establishment” predecessors escaped culpability for misdeeds far more severe than violating campaign finance law — or even, conspiring to commit cybercrimes with the Russian government. As Vox’s Dylan Matthews recently noted:

In the summer of 1968, as biographer John A. Farrell has demonstrated, Republican nominee Richard Nixon and his aides actively sabotaged efforts by Lyndon Johnson’s administration to negotiate an end to the Vietnam War. They got away with it, prolonging a war that wound up killing more than a million people in the process. It’s barely even on the list of Nixonian wrongdoing that people remember. Henry Kissinger was at the time a Johnson adviser leaking information for Nixon to use in his efforts. Today he remains a broadly respected elder statesman, even in Democratic administrations.

It wasn’t even two decades later that the next Republican administration conspired with a foreign government, namely Iran’s. This time, the actions weren’t just horrendously immoral but illegal as well; elongating the Vietnam War was, alas, not a crime, but funding the Contras with Iranian arms deal money was. So was lying to Congress about it. Fourteen members of Reagan’s administration were indicted, and 11 were convicted.

It didn’t matter. Before leaving office, President George H.W. Bush pardoned six people involved, all high-ranking policy officials like Secretary of Defense Caspar Weinberger, National Security Adviser Robert McFarlane, Assistant Secretary of State Elliott Abrams, and CIA covert ops director Clair George…Abrams, whose far worse transgressions in the Reagan years involved his support for El Salvador’s brutal military dictatorship and his efforts to cover up the El Mozote massacre, worked as a senior National Security Council official for the entirety of the George W. Bush administration.

Neither Trump’s hush payments to Stormy Daniels — nor his hypothetical complicity with Russia’s cyber-attack on the DNC — got hundreds of thousands of people killed. Nor did they involve secretly arming right-wing militias whose affinity for butchering civilians had already alienated the U.S. Congress, or abetting the cover-up of historic war crimes in El Salvador. Without question, if the president colluded with Russian intervention in the 2016 election, then he is guilty of undermining the integrity of American democracy for political gain. But so were Nixon and Reagan. And the latter’s assault on both rule of law and democratic integrity in the U.S. weren’t lost on his contemporaries. In 1991 TheNew Yorker’s Mark Danner wrote the following elegy for the American republic:

Perhaps the most disquieting legacy of Iran-Contra, in which extremely serious political crimes were exposed and then left largely unexorcised, is a kind of pervasive moral lassitude, in which charges that the integrity of the 1980 Presidential election was compromised with the help of the Iranian government evoke an almost bored reaction. It now appears that the charges will be left to linger, unanswered and uninvestigated, because no one with any power sees it to be in his personal political interest to confront them. The dictum that we live in a nation of laws can also be understood ironically-that ours has become a nation only of laws. For laws without the will to enforce them and confront the consequences remain simply words on paper.

Trump’s immediate Republican predecessor reaffirmed Danner’s insight, by overseeing the systematic violation of both domestic and international laws against military torture — while Trump’s immediate Democratic predecessor did so by refusing to bring any of that criminal conspiracy’s masterminds to justice.

This culture of elite impunity has not been confined to the political realm. America’s economic elites avail themselves of its benefits even more routinely. The 2008 financial crisis revealed myriad acts of financial and foreclosure fraud — almost none of which was criminally prosecuted. Barack Obama’s Justice Department explicitly endorsed the principle that some individuals and institutions are simply too economically powerful to be bound by criminal law, when it decided not to prosecute HSBC for laundering hundreds of millions in drug money.

All of which is to say: If we actually lived in a country where the principle of equality before the law was sacred — and the norm against elites flouting that principle was consistently enforced — congressional Republicans might have a hard time putting partisanship before the rule-of-law.

But we don’t.

The American public has long understood and lamented this fact. The Trump campaign’s “lock her up” chants were fueled by partisan mania and misogyny — but also, an earnest belief that Hillary Clinton was escaping responsibility for serious crimes because she was politically powerful. Right-wing media is largely responsible for disseminating that fiction; but our culture of elite impunity helped to lend it credibility.

In 2015, a Gallup poll found 75 percent of American respondents agreeing that corruption was “widespread” in their government. One year later, 75 percent of voters who cast early ballots in the 2016 election told Reuters/Ipsos that they were looking for a “strong leader who can take the country back from the rich and powerful.”

Ordinary Americans are divided on a wide range of issues. But no mass constituency in either party believes that the government should prosecute working-class people for evading hundreds of dollars in taxes, while allowing the superrich to stash hundreds of millions worth of taxable income in the Cayman Islands — or that Uncle Sam should serve life sentences to small-time crack dealers, while looking the other way when megabanks launder nearly $1 billion worth of drug money, or pharmaceutical companies engineer opioid epidemics. The American elite does not owe its extralegal privileges to a democratic mandate, but to the inability of American voters to unite around their common disgust with the criminals who run this country (an inability founded, in no small part, on a failure to agree about who, precisely, those criminals are).

So long as the American electorate remains polarized along lines of race and region instead of class — and by its disparate views on Colin Kaepernick rather than its near-unanimous ones about superrich tax evaders — white-collar criminals (who don’t get ensnared by the odd special counsel investigation) will continue to go free.

Which is to say: It would be perfectly normal for Donald Trump to escape accountability for his crimes by exploiting partisan divisions – all the plutocrats are doing it.

From @presssec: new rules for reporters at WH press conferences.- one question per reporter, then yield floor and microphone.- followup question “may be permitted.” Then yield floor and microphone.- “failure to abide” may result in suspension/revocation” of WH press pass.

so, the conventional wisdom on election night was that democrats had not achieved the resounding repudiation of president trump they were looking for. yes, they’d won the house, but not overwhelmingly. and progressive favorites stacey abrams, andrew gillum, and beto o’rourke had gone down to defeat. meanwhile, republicans had made slight gains in the senate. a few days later, the thinking shifted in Democrats’ favor, as more late-breaking results came in from various states, especially california, which is notoriously slow at counting ballots, and where the party did extremely well. we’re not almost two weeks out from the election, enough time to look at things more dispassionately. how do you rate the performance now?

Trying to get away from the endless and interminable and redundant arguments over how to define a “wave.”

Benjamin Hart3:10 PM

yes, I agree, there is little more tedious than parsing what defines a wave

Ed Kilgore3:11 PM

Democrats won the House popular vote and picked up 37 or 38 seats. Dems won 22 of 34 Senate races (with one in Mississippi still to go), and by just about any measure, more Senate votes. And they picked up seven net governorship and seven state legislative chambers.

Part of the problem is that an insanely pro-GOP Senate landscape made a good Democratic performance look bad.

And the other problem was sky-high Democratic expectations, plus the overwhelming attention given to close races in Florida, Georgia and Texas.

Which all went Republican.

Benjamin Hart3:13 PM

yes, and the pressure to prematurely label the evening one way or another, which is endemic to election coverage (and which I don’t see going away any time soon)

the other thing, I think, is that trump is such an outlier of a person and president that some people view anything less than a sweeping rejection the likes of which we’ve never seen before as a bit of a letdown

Ed Kilgore3:14 PM

Yeah, the commentariat has not adjusted well to the slow counts that ever-increasing voting-by-mail plus provisional ballots have introduced.

As for Trump, I guess part of the polarization over him is that it’s hard for partisans to interpret anything that happens as anything other than total victory or defeat for MAGA. And the MSM tends to respond with quick judgments of a “split decision,” which is very misleading.

Benjamin Hart3:20 PM

yep. haven’t seen TOO much of that since the election, to be fair. but back to the actual gains made by dems, which it’s easy to lose track of amid the hundreds of results. what do you think was their most important victory other than winning the House? for me, it might have been knocking off scott walker in wisconsin.

Ed Kilgore3:23 PM

Guess it depends on your interpretation of “important.” If you mean “soul-satisfying for progressives,” then yeah, finally taking down the guy who had most consistently applied the worst kind of conservative policies to a previously progressive state was a very big deal.

Sweeping Orange County, California’s congressional seats was another big deal emotionally, particularly for those of us old enough to remember O.C. as a John Birch Society hotbed.

From a more practical point of view, all those congressional wins mattered–first, as part of a House takeover, and second, as a foundation for (maybe) a Dem reconquest of the Senate in 2020.

And the gubernatorial and state legislative gains will help with the next round of redistricting, though there’s some unfinished business on that front in 2020.

As I’ve argued at some length, even some losses were important for Dems–particularly the Florida and Georgia gubernatorial elections and the Texas Senate race. They showed that finally “national Democrats” (including African-Americans) can do better in the former Confederacy than Blue Dogs–at least in states with the requisite combination of a large minority vote and some upscale suburbs.

Benjamin Hart3:29 PM

yes, and that may also have big repercussion in terms of what kind of candidate democrats want to nominate in 2020

Ed Kilgore3:30 PM

Well, it certainly reinforces the idea that there’s a “sunbelt strategy” for 2020 that could work as an alternative to Democrats obsessing about the Rust Belt states Trump carried.

Benjamin Hart3:31 PM

right – arizona and georgia really could be in play

and, of course, florida

Ed Kilgore3:31 PM

And North Carolina.

Benjamin Hart3:31 PM

right.

so, all in all, a democratic party that is somewhat addicted to being traumatized should be feeling pretty good

Ed Kilgore3:35 PM

Yeah. There were some painful near-misses, but not really much grounds for a struggle-for-the-soul-of-the-party thing. That’s good, since Democrats will need all their energy to winnow their 40-candidate presidential field.

A Florida elections expert digs into what went wrong for Democrats on Tuesday

This election was the third consecutive Governor’s race decided by a point or less, bracketing two consecutive Presidential elections decided by a point. This drives homes two points: One, Florida, for all its dynamic growth and demographic changes, is very stable; and Two, when organizations like Quinnipiac try to peddle off polls showing candidates in Florida with 6-point leads, or 9-point leads, you now know what to do with that information (a post/rant on public polling is coming soon).

There are a lot of reasons why Florida is very competitive…but it is what it is. Big chunks of Florida cancel each other out, and both parties have large, and quite dug-in bases – and neither have a base that alone gets them to 50% + 1. Winning Florida (or losing it) is about managing the margins throughout Florida.

16 Democratic representatives signed a letter opposing Nancy Pelosi for House speaker … but she still has no announced challenger

… Pelosi could lose as many as 15 Democratic votes when she stands for election as speaker on Jan. 3. One of the 16 signers, Ben McAdams (Utah), is now trailing Rep. Mia Love (R-Utah) and might never cast a speaker vote.

Not signing the letter is Rep. Marcia L. Fudge (D-Ohio), who has publicly opposed Pelosi and is now mulling a run against her. Fudge said Friday she would not make a final decision on whether to run until next week at the earliest.

Another five Democrats — Rep. Conor Lamb (Pa.) and Reps.-elect Jason Crow (Colo.), Jared Golden (Maine), Mikie Sherrill (N.J.) and Abigail Spanberger (Va.) — have made firm statements saying they would not vote for Pelosi but did not sign the letter.

stacey abrams and andrew gillum both conceded their elections this weekend to their republican opponents after protracted post-election battle. realistically, did either of them have any other option but to call it quits?

Zak Cheney-Rice11:47 AM

I think with Gillum the outcome was more or less decided on election night. His race was always more of a long shot than Bill Nelson’s reelection bid — the other high-profile Florida contest that dragged on into last week — and was never as close as that one. But I think it’s important to note that Abrams was pretty intentional about not conceding, in the traditional sense. She basically said, in so many words, that Kemp’s victory would have to stand because she saw no other available legal recourse available. I think she knew her options included dragging this out longer, but also knew that, legally, there wasn’t much she could do to alter the outcome.

But she has said she will continue to pursue issues around election integrity in Georgia, and I think that will include several (more) legal challenges to Kemp’s win, or at least to the mechanisms that facilitated it

Benjamin Hart11:48 AM

yes, she did not praise kemp, and called his win “legal” but refused to say that he was “legitimate” when asked by jake tapper

Zak Cheney-Rice11:52 AM

Yeah the question of legitimacy seems to be a sticking point for a lot of folks. There’s a Slate piece (https://slate.com/news-and-politics/2018/11/georgia-stacey-abrams-brian-kemp-election-not-stolen.html) circulating today arguing that we shouldn’t describe the Georgia election as “stolen,” and the first reason listed is because it could lead more and more people to see American elections as illegitimate. But I think the cat is pretty far out the bag on that one. He’s out and running down the street. I live in Atlanta and there are piles of little cards littering the streets around Piedmont Park (the city’s Central Park equivalent) that read, “Stolen Votes.” There are many, many people who believe this election was ill-gotten. So yeah, I think it is fair to say this wasn’t a legitimate win by plenty of metrics.

I’m not sure what group — activist, political, or otherwise — created the cards, to be clear. But it expresses a widely held sentiment.

Benjamin Hart11:57 AM

yeah, I have to say I’ve been on the other side on that debate – while I think kemp is a dirty character and absolutely employed the underhanded tactics we’ve all heard about, “stolen” struck me as a rhetorical bridge too far, for the reasons that a) it’s an escalation that I’m not sure is useful in the wider context of institutional delegitimization that republicans are pushing and b) we don’t actually KNOW if kemp’s actions swung the election, though we can suspect they did. I’m interested to hear you say otherwise, though.

Zak Cheney-Rice12:07 PM

I think it’s a useful and accurate frame, but it definitely has a veneer of plausible deniability because so much of what goes into “stealing” these elections takes place long before election day. Brian Kemp can always point to the fact that he’s acting well within the law, but it’s important to note these are laws he and/or his party created, likely for this very purpose. If you disenfranchise more than a million people — often for quibbling bureaucratic irregularities — and do so in a way that pretty transparently targets those whose lives are already beset by instability and unpredictability around housing, transportation, and employment, you are essentially creating the electorate you want. In Republicans’ case, that electorate is one skewed toward maintaining white, and conservative, power, at the expense of black voters, young voters, and poor voters (all of which often overlap). So the question of “theft,” it seems to me, is purely rhetorical. In our technical, traditional understanding of elections, we would not necessarily describe elections that took place in the Jim Crow South as “stolen.” But if roughly half of the Jim Crow South’s electorate is either barred from voting outright or forced to navigate an insane labyrinth of inconveniences, barriers, and sometimes outright violence to cast their ballots, it’s a stretch to describe that as legitimate, either.

That is, of course, a matter of differing scale. But it doesn’t take much to tip an election like Kemp-Abrams.

Also, it’s not our job as voters to keep falsely believing our elections are “legitimate” when clearly, in several key ways, the evidence suggests otherwise.

That distinction is earned.

Benjamin Hart12:12 PM

all good and useful points. but I do think the phraseology matters. would you say that the florida election was stolen because of the state’s disenfranchisement of felons?

Zak Cheney-Rice12:24 PM

It does matter, I think, but I haven’t found any of the arguments that dismiss such phrasing as extreme, or bemoan how it sows mistrust in our systems, to be especially convincing. I do believe that locking up black people at disproportionate rates, then ensuring they cannot vote even after they’ve done time, is doing the same work that racist voter suppression does by all the means listed above. It is stealing their right to vote, plain and simple. I think we can have a nuanced discussion about whether that means elections are being “stolen” outright or not (I tend to lean toward yes) but at the end of the day I think the more pressing issue is that we are building our democracy by ensuring people who should be able to vote cannot, and that we perhaps need more urgent language to describe the actual stakes there.

The California union that provided major funding for successful ballot campaigns to expand Medicaid in three red states this year is already looking for where to strike next to expand Obamacare coverage in the Donald Trump era.

Leaders of SEIU-United Healthcare Workers West declined to identify which states they might target in 2020. But the six remaining states where Medicaid could be expanded through the ballot are on the group’s radar: Florida, Mississippi, Missouri, Oklahoma, South Dakota and Wyoming.

NEW: CNN asks court for an emergency hearing Monday afternoon, as the White House still plans to boot CNN correspondent Jim Acosta, despite court order that reinstated the journalist. https://t.co/vrmtazbgcI

JUST IN: Sens. Blumenthal, Whitehouse and Hirono file lawsuit challenging President Trump’s appointment of Acting AG Whitaker, arguing the appointment is unconstitutional because Whitaker was not in Senate-confirmed post.

New: “The White House Correspondents’ Association is pleased to announce that Ron Chernow, one of the most eminent biographers of American presidents and statesmen, will be the featured speaker at its annual dinner on Saturday, April 27, 2019.” History and First Amendment theme.

The news media today face an epistemic crisis: how to publish the president’s commentary without amplifying his fabrications and conspiracy theories.

The traditional news media amplify his words for a variety of reasons, including newsworthiness (he is, after all, the president), easy ratings (cable-news audiences have soared in his term), and old-fashioned peer pressure (the segment producer’s lament: “If everybody else is carrying Trump, shouldn’t we?”).

But a virus doesn’t just borrow a host’s cellular factory to reproduce; it often destroys the host in the process. The traditional news media are thoroughly infected by the Trump virus. It is not only spreading the disease of the president’s lies, but also suffering from a demise in public trust—at least among one half of the electorate.